Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Sunday, April 22, 2012

Even More Unsettling News After the AC/AUCC “Negotiated Settlement”?

There are dozens of universities and colleges in Canada that appear to have been caught unaware and will probably be very unhappy about major developments that go to the core of research, teaching, access to knowledge and the economics of education. All of this has suddenly happened at a time when we are likely only weeks or months away from new copyright legislation that will explicitly include "education" in its fair dealing exceptions and may well reverse the adverse decision on K-12 education from the Copyright Board and the Federal Court of Appeal.

The few short days since the Association of Universities and Colleges Canada ("AUCC") announced
on April 16, 2012 that it had reached a “successful
outcome” and a"negotiated
settlement" with Access Copyright ("AC") have raised more questions than they provided answers.
Indeed, one might well ask whether these developments are calculated to put
enormous pressure on AUCC members to sign on ASAP to this arguably very disadvantageous
model
license by renewing the schedule for the dreaded interrogatories and survey
and renewing and accelerating the process for the clearly unsettled hearing
that will almost certainly, the way things are going, result in a certified mandatory tariff with the force of law
that makes the model license look good by comparison?

Access
Copyright has agreed that the best retroactivity discounts available to
universities will be available those that indicate in writing to Access before May 1, 2012 that they expects
to sign the licence, and then actually sign before June 30, 2102 [sic]. While
you need to indicate your intent to sign the licence by May 1, you may still
reconsider your options after that date, and you could choose to delay signing
(in which case the discount will be lower), or not sign at all. (highlight
added)

However, among other things, it’s not at all clear:

·how
this “”Limited Time Offer” will work; and,

·why
it is so limited in time and so urgent?

Nor is it clear what AC means when it says that
those who “advise Access Copyright in writing of their intention to sign the Model License by no later than May 1,
2012, and sign by no later than June 30, 2012, pay no retroactive payments.”
What does “intention to sign” mean? What happens if the university changes its mind?

May 1st is seriously really soon. It is
only a week away. What exactly is the emergency?

Nor is it clear that those institutions which had hoped to avoid further involvement in the onerous interrogatory process can actually count on being able to do so, even if they bow to the pressure to sign the model license right away. Davidson says in his April 16 email to presidents:

...a number of institutions that have opted out of the tariff would now be required to respond to the intrusive and time-consuming interrogatory process. Should these institutions instead choose to sign a licence with Access, they will not be required to submit to the interrogatory process. (highlight added)

However, if there is such an understanding, neither the model license nor the "limited time offer" say anything about it. Moreover, the notice below from the Copyright Board in response to the email dated Friday, April 20, 2012 from AC suggests that these interrogatories are very much an ongoing issue.

In fact, by remarkable coincidence, things are also
happening once again at warp speed over at the Copyright Board:

AUCC
is getting
readyto “negotiate” the terms of some kind of presumably mega survey that
would presumably appear to intended to be inflicted upon those don’t quickly
extricate themselves from this situation and to report to the Board on this by
May 7, 2012.

AUCC
has not yet responded as of Friday, April 20, 2012 to AC’s demands to press
forward immediately on the answering of interrogatories by several AUCC members
who may have thought that would not happen and who now may be very unhappy. See
the very interesting notice and email below. Institutions affected and whose
interests face a virtually immediate deadline of April 24, 2012 for AUCC to
respond to AC’s demands. Institutions affected by this rapid notice from the
Board include certain universities that earlier took a lead in opposing AC on
this file, such as Athabasca, UBC and York. Interestingly, the President of UBC,
Stephen Toope, who was an early outspoken critic of AC’s proposed tariff and
who is a very accomplished law professor and former dean of law at McGill,
became the Chair of AUCC on October 25, 2011. This is what UBC had to say shortly after the UofT/Western deal, following an earlier much
tougher statement. [This paragraph has been corrected]

On
April 20, 2012 (see below) the Board demanded a response from AUCC by April 24,
2012 regarding how it will deal with AC’s demands.

All of this sudden and inexplicable pressure is bound to cause
much confusion and consternation at many institutions and is no doubt now
occupying the attention of literally dozens if not hundreds of very important senior
administrators and university counsel who would surely rather be focusing on
almost anything else. They may be wondering just exactly what was settled by this
“negotiated settlement”?

This is a very unusual “settlement” and a very difficult
situation for Canadian universities. There are and will be lots of questions
about it. Despite this apparently bleak situation, some may still be looking for
a“deus ex machina” development + a“Hail Mary pass” that could somehow succeed. This may not be completely impossible. But this is not the appropriate forum to have that discussion.

However, absent such developments, this battle is
shaping up to be a really major, though quite possibly ultimately Pyrrhic, victory
for AC and a really serious setback, at least for the foreseeable future, for
Canadian academia. One can understand why Prof. Ariel Katz calls this a "dismal outcome".

Whatever happens, it is not likely to be a pretty
picture. And there could be even more troubled waters ahead quite soon.

AUCC shall provide a
response to ACCC and Access Copyright request described below by no later than Tuesday,
April 24, 2012 at noon. ACCC and Access Copyright shall reply by no later
than Wednesday April 25, 2012 at 5pm.

We write concerning completion of the
interrogatories process with respect to the sample of Opt-Out Institutions,
which is required as a result of the decision of the Federal Court of Appeal
dismissing the application for judicial review brought by the AUCC et al.

Opt-Out Institutions Sample

Please note that, due to errors in the
original sample pool, the sample of AUCC opt-out institutions has changed since
the list was filed with the Board on September 27, 2011. As now agreed by the
parties, the representative sample of Opt-Out Institutions required to respond
to Access Copyright’s interrogatories is as follows:

ACCC

Group

Institution

A

Holland College

A

Lethbridge College

A

University College of the
North

B

Northern Lights

AUCC

Group

Institution

A

Brandon University

A

Campion College (affiliate of U of Regina)

A

University of Guelph

B

Athabasca University

B

Mount Royal University

B

Nova Scotia College of Art & Design

B

Royal Roads University

B

University of Alberta

B

University of British Columbia

B

University of Saskatchewan

B

University of Waterloo

B

York University

Letter to Opt-Out Institutions:

The Board’s August 25, 2011 Ruling
provided that the letter to the Opt-Out Institutions should be sent on
September 27, 2011. We expect that the letter to the Opt-Out Institutions
(version as attached to the Board’s September 20, 2011 Order) can be sent
immediately.

Schedule for Opt-Out A Institutions

Applying the same time periods as set
by the Board in its September 20, 2011 Order, we propose the following schedule
for completion of the interrogatories process by Opt-Out A Institutions:

1. Answers to interrogatories: no later thanTuesday, June19, 2012

2.Notice
with respect to unsatisfactory/incomplete responses: no later than Monday, July 23, 2012

3.Filing
with the Board of replies to notices of the grounds with respect to any remaining issues: no later thanTuesday, August 7, 2012

4.Filing of complete/satisfactory responses: no later than six weeks following the decision of
the Board on deficiency claims

Schedule for Opt-Out B Institutions

With respect to the Opt-Out B Institutions,
these Institutions have already completed steps 1 and 2, above. The AUCC and
ACCC have been provided with Access Copyright’s claimed deficiencies with
respect to the Opt-Out B Institutions. Applying the same time
periods as set by the Board in its September 20, 2011 Order, the following
schedule is proposed for the process for Opt-Out B Institutions:

3.Filing with the
Board of replies to notices of the grounds with respect to any remaining issues: no later thanThursday, April 26, 2012

4.Filing of
complete/satisfactory responses: no later
than six weeks following the decision of the Board on deficiency claims

Requested Ruling

Counsel
for the ACCC has agreed to the schedule set out above. Mr. Bloom has been given
notice of the above but has not responded on behalf of the AUCC.

The ACCC and Access Copyright
respectfully request that the Board issue an order setting the schedule as set
out above.

I note that the first deadline under
the proposed schedule occurs on April 26, 2012. We respectfully request that
the Board seek the AUCC’s position as soon as practicable so that the
interrogatories process regarding these institutions may be completed in a
timely manner.

1 comment:

As a graduate student and President of the Athabasca University Graduate Students’ Association (AUGSA), I was proud that Athabasca was one of the first institutions to take a lead in opposing Access Copyright’s demands. Both Access Copyright’s earlier demands and the newly signed agreement with AUCC are bad for students and bad for universities. AUGSA supports AU’s decision to oppose Access Copyright’s demands and to refuse to sign the new agreement.

We are disheartened to read that AUCC has essentially abandoned its member institutions that have chosen not to sign the new agreement and that AU may be left to fight this on its own.

A number of students and academics from AU have expressed our disapproval of the AC/AUCC agreement, most recently in response to an article about the agreement published in University Affairs, AUCC’s magazine. In particular, I would like to draw your attention to the comments made by Dr. Rory McGreal, as well as my own comments in support of his response. Both of these comments can be read on the original UA article as well as on Dr. McGreal’s blog.